Allahabad High Court

Allahabad High Court: The Division Bench of Dr. Kaushal Jayendra Thaker and Gautam Chowdhary, JJ. dismissed a petition which was filed praying for quashment of the impugned FIR under Sections 420, 406, 120-B Penal Code, 1860.

First informant aged about 28 years, does business and petitioner 1 and 2 are also into business. The first informant moved to the Magisterial Court, who after verifying the facts, issued direction to the police officer to investigate and took cognizable case as the informant had to get machines on concessional rates by the petitioner 1. The bank transaction of Rs.2,03,280/- from the bank of the informant was made to the petitioner. Despite the money being given by way of bank account, no machine was supplied to the informant. Thereafter, Kamlesh Singh to whom the money was also sent, issued a cheque after deducting commission. The amounts could not be realized and therefore, the informant again requested both the accused along with his brother but they locked the premises and were not available. FIR was registered but no action was taken and therefore, the informant moved the Court which has directed investigation as it is prima facie found that cognizable offence has been committed by the accused.

Counsel for the petitioners submitted that the alleged incident occurred on 25-08-2020 but the FIR was lodged on 25-02-2022 without any proper explanation. It was further submitted that Sections 4 and 5 of the Criminal Procedure Code, 1973 would be applicable as according to the petitioner’s counsel, the offence alleged to be committed under the Negotiable Instruments Act, 1881.

The Court observed that these facts go to show that it is not a matter which falls under the Negotiable Instrument Act as sought to be canvassed by counsel for the petitioners. The provisions of Section 4 of Cr.P.C. read with Section 5 relate to procedure where commission of offence under the Special Act. In the present case, the informant has invoked the criminal jurisdiction and not the jurisdiction under Section 138 of the Negotiable Instrument Act and therefore, Section 5 cannot be made applicable.

The Court relied on Noorulla Khan v. Karnataka State Pollution Control Board, 2021 SCC OnLine SC 601, where it was held by the Supreme Court that Section 5 of Cr.P.C. applies to the proceedings under the Special Act. The Act specifies certain procedural justice and protection. Proceedings under the Indian Penal Code would be governed by the Criminal Procedure Code only and therefore, the provisions of Section 5 of Cr.P.C. and 468 Cr.P.C. read with contours for invoking Article 226 of the Constitution will not permit us to interfere in the investigation as prima facie, facts go to show that the ingredients of Section 406, 420 and 120-B IPC are made out against the accused. The actus reus is also prima facie proved to dupe the informant.

The Court opined that FIR cannot be said to be belated as Sections 420, 406, 120B Penal Code, 1860 permits lodgment of the FIR within a period as prescribed by Section 468 Cr.P.C. The petition was dismissed holding that the registered case cannot be said to be such which is beyond the period of limitation and that there is a abuse of process of law.

[Mohar Pal v. State of U.P., 2022 SCC OnLine All 427, decided on 21-06-2022]

Advocates who appeared in this case :

Harikesh, Advocate, Counsel for the Petitioner;

G.A., Advocate, Counsel for the Respondent.

*Suchita Shukla, Editorial Assistant has reported this brief.

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